A Living Will and Assisted Death

Apr 11, 2018

Prior to June 2016, a person had the right to refuse medical treatment but did not have the right to seek active medical assistance in dying (“MAID”).

The right to refuse treatment can be expressed directly by the patient, by the patient’s attorney for personal care, or by instructions left in a living will. A living will can be very detailed and specify the type of treatment one wishes to have or not have in the event of a certain illness, or it can just express general wishes – e.g. “that no ethically extraordinary treatment be used to prolong my life”. It is meant to provide instructions to doctors and the attorneys for personal care to guide them in making medical decisions.

In June 2016, the Parliament passed Bill C-14 which amended the provisions of the Criminal Code of Canada (“CCC”) so that it would no longer be a criminal offence for doctors to provide patients with MAID.

To qualify for MAID, the patient has to meet the following criteria:

They must be eligible for publicly funded health services in Canada;

They must be of the age of majority and have the capacity to make decisions with respect to their health;

They must have a grievous and irremediable medical condition;

The request for MAID must be made voluntarily and without external pressure;

They must provide informed consent to receive MAID.

Criteria (b), (d) and (e) means that a living will or power of attorney for personal care cannot be used to give consent to MAID. The decision must be made by the person directly as they are suffering from the grievous and irremediable medical condition.

This can be a difficult hurdle for some patients who may not meet the conditions of a grievous and irremediable medical condition at that point in time, but may deteriorate quickly and become incapable of making medical decisions and giving informed consent.

In order to qualify as having a grievous and irremediable medical condition:

The patient must have a serious and incurable illness, disease or disability;

The patient must be in an advanced state of irreversible decline in capability;

The patient must be in enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

The patient's natural death has become reasonably foreseeable.

The determination of whether a patient has a grievous and irremediable medical condition must be made by two doctors.

Even with all of the legislation in place, it has not always been easy for patients to gain access to MAID services. Many doctors are still not willing to participate with MAID for reasons of conscience or religion. In such cases, the doctor cannot impede the patient’s access to MAID and must provide them with an effective referral. Even if a doctor is willing to assist, they not be able to because they are not trained to perform such procedures. Another issue is that the fourth condition under the federal legislation, i.e. that the death has become "reasonably foreseeable", meant that doctors were being asked to make a judgement call and risked criminal liability in the event that their judgment was questioned. Some doctors are not willing to open themselves up to such risk.

Since Bill C-14 has come into force there have been approximately 2,000 medically assisted deaths in Canada. Most of the news stories have been about the struggles that patients have gone through to access MAID. Recently, however, there was a touching story about a couple who had been married for 73 years who were able to receive MAID to allow them to die together. Hopefully as people become more comfortable with the legislation, policies and procedures surrounding MAID, it will become a more effective tool to help patients take control of their medical situation.